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THE CUBAN REVOLT AND THE CONSTITU 

TION. 



A PAPER BY 

EDWARD B. WHITNEY. 



[From the Vak Review, May, 1898.J 








X 



THE CUBAN REVOLT AND THE CONSTITU- 
TION. 



A PAPER BY 

EDWARD B. WHITNEY. 



[From the Yale ^Review, May, 1898,] 



( \'\ 



THE CUBAN REVOLT AND THE CONSTITUTION. 

IN June, 1895, soon after the present Cuban war com- 
menced, President Cleveland recognized the existence of 
the insurrection and proclaimed the neutrality of the United 
States. By this step our so-called neutrality laws were put 
into operation, both as against the Cubans and as against the 
Spaniards.^ The operation of these statutes would have been 
in no wise different had the insurgents been recognized even 
as an independent state. They were, however, most anxious 
to be recognized as such. This would doubtless have aided 
the sale of their bonds, and perhaps would have embroiled us 
at once with Spain, thus indirectly assuring the result which 
they were fighting to attain. But to recognize a body as inde- 
pendent is simply to say that it is so; and to say that it is so 
when it is not so is to tell a lie. The Cubans were not inde- 
pendent, although we wished that they were, and hoped that 
they would get to be. The President had no right to tell a lie 
in the name of the American nation, and did not. Nor was 
there any reason for recognizing "belligerency." He had 
already recognized that a war was being waged, and that the 
insurgents were not mere bandits or rioters. They had no 
territorial or military contact with the United States, no sea- 
ports, no navy, no privateersmen. Spain, on the contrary, had 
seaports and a navy. For reasons of her own she preferred not 
to have the Cubans recognized as belligerents, technically 
speaking; but if we had done so, she could have exercised 
against our vessels the right of visitaftion, search, and seizure 
of contraband articles on the higlr^seas, while we would have 
forfeited the right to complain of the war's injuries to the 
property of our citizens on the island. A recognition of 
belligerency is a detriment to the neutral, which should be 

' Tke Three Friends, 166 U. S. I, decided by the Supreme Court of the United 
States, March i, 1897. The opinion and arguments in that case discuss the 
nature and effects of recognition of belligerency. 






By Transfer. ™^0 



1898] TJie Ctiban Revolt and the Constit2ttion. 9 

avoided if possible. It is of material advantage only to a belli- 
gerent with whom the neutral comes actually in contact, on land 
or sea.^ 

Hence President Cleveland and his successor, up to the time 
when our own war with Spain brought us into practical alliance 
with the insurgents, gave them recognition neither of "bellig- 
erency" nor of independence. The reasons, however, were not 
understood by most of our people, who were misinformed on 
the legal aspects of the question. Many, moreover, were 
anxious to provoke the war between ourselves and Spain as 
soon as possible. The agitation was taken up in Congress, and 
both Houses at the session of 1895-6 passed a resolution 
expressing their opinion in favor of recognizing belligerency. 
In the following December a resolution actually declaring the 
independence of the Cubans, and offering mediation, was intro- 
duced and pressed in the Senate. It was met with a quiet 
statement from Mr. Olney, the Secretary of State, that such a 
resolution would only express the individual opinions of the 
gentlemen who should vote for it, and would have no legal 
efifect, since the recognition of independence of a new foreign 
state is an executive and not a legislative act. The statement 
precipitated a constitutional debate and the journalistic and 
senatorial attacks upon the Secretary were hot; but they sub- 
sided rapidly upon the production of the precedents upon 
which he relied,^ and the resolution was dropped. The con- 
troversy of 1898, when a large party in Congress attempted to 
take the whole jurisdiction over foreign relations out of Presi- 
dent McKinley's hands, is still fresh in memory. We have 
seen enough of Presidential and Congressional diplomacy, of 
their differences in method and efifect, to realize the very great 
importance of the constitutional question, how far the Presi- 
dent's power reaches in foreign affairs, and how far Congress 

^ The alliance now (May 2) projected with Gomez' troops will doubtless 
involve a recognition of belligerenc}'. 

* See the two memoranda prepared in the executive departments and pre- 
sented by Senator Hale {Sen. Docs., 54th Congr., 2d Session, Nos. 40, 56); also 
speech of Senator White, February 25, 1897, and of Senator Spooner, April 
15, 189S. 



lo Yale Review. [May 

has concurrent or superior jurisdiction. Had Congress the 
right to recognize Cuban belHgerency? Had it the right to 
recognize Cuban independence? Had it the right to direct the 
course of diplomatic correspondence, and decide when the 
ultimatum should be sent? 

It must be remembered that the Federal Constitution was 
built upon the theory, long accepted as gospel by our states- 
men, that the best form of government is one in which the three 
great branches, legislative, executive and judicial, are entirely 
independent of one another. One is to legislate, another to 
administer, the third to adjudicate. Neither is to direct the 
other. The powers of sovereignty are to be so distributed 
between them that there shall be no duplication, no concurrent 
jurisdiction, which might give rise to possible deadlocks and 
disputes. The theory is not always satisfied in practice, but as 
a general rule whatever power is granted to the executive 
branch is denied to the legislative, and vice versa; and certain 
it is that whatever power either derives from the Constitution 
is independent, and is not subject to direction from the other. 

The Constitution does not confide the whole subject of 
foreign affairs, or of diplomatic negotiations, in express lan- 
guage to either branch of the Government, but leaves the 
matter to implication from its express provisions. It empowers 
the legislative branch to regulate commerce with foreign 
nations, to define and punish piracies and offenses against the 
law of nations, to declare war, to grant letters of marque and 
reprisal, and to make all laws necessary to carry into execution 
any of these powers, or any of the other powers vested in the 
government of the United States, or in any department or 
officer thereof. It empowers the Executive—the President — 
with the advice and consent of the Senate, to make treaties, 
and to appoint ambassadors, other public ministers and consuls. 
It empowers him to receive ambassadors and other public 
ministers. 

Diplomatic negotiations are conducted by ambassadors and 
other public ministers, and in rare instances by special com- 
missioners. . The President's authority to send and receive 
these officials is absolutely independent of the legislature. It 



1 898] TJie Cuban Revolt and the Constitution. 1 1 

is limited only to the extent of requiring the confirmation by 
the Senate of his nominations, the Senate thus acting in its 
executive capacity. Congress can indeed exercise great influ- 
ence through its power of appropriating money; but though it 
refuse to appropriate for the office, the President and Senate 
can send an ambassador if one is to be found who will go with- 
out salary and pay for his own outfit. 

The highest result of diplomatic negotiations is a treaty; and 
the power to make treaties is also absolutely uncontrolled by 
Congress, the President acting with the Senate in its executive 
capacity. Yet a treaty is part of the supreme law of the land. 
It is of equal rank with an act of Congress. A statute abro- 
gates a prior treaty with whose provisions it conflicts, but a 
treaty has equal power over a prior act of Congress. Thus a 
tariff duty on some article may have been intended by Congress 
to be the corner-stone of our revenue system, yet the article 
may be transferred to the free list by the action of the President 
and Senate in making reciprocity treaties with the countries 
from which it is imported. So our anti-Chinese legislation 
could be repealed by a new treaty with China. The President 
and Senate can do things by treaty which Congress cannot do 
by statute. Congress cannot modify the alien laws of a State; 
but a treaty with a foreign nation can give its citizens equal 
privileges with our own. By a treaty, without consulting the 
House of Representatives, we surrendered Texas in 1819, part 
of Maine in 1842, and British Columbia in 1846. While the 
first of these treaties was pending, Henry Clay introduced in 
the House a resolution reciting that, as Congress has power to 
dispose of our territory, no treaty to alienate any portion of it 
is valid without the concurrence of Congress; but upon opposi- 
tion it was dropped. 

Diplomatic business not relating to treaties consists partly in 
negotiating informal compacts of similar nature, and for the 
rest in such work as the collecting and giving of information, 
requests for protection of our citizens, assisting them in the 
protection of their personal and property rights, and procuring 
for them social introductions. None of these acts are legisla- 
tive in character. Diplomacy, therefore, is a matter entirely 



12 Yale Review. [May 

entrusted to the President's responsibility; while at the same 
time it is eminently proper that he should ask the opinion of 
Congress before any step is taken which might require large 
appropriations, or which might decrease the revenue of the 
government, or which might lead to war. It has been cus- 
tomary for Congress to give its advice in the form of a resolu- 
tion; but sometimes it has been put in the form of a statute. 
Thus Congress has advised the President to make reciprocity 
treaties upon a certain basis with foreign countries. This 
advice is conveyed in the form of a statutory provision author- 
izing him to do so, but the statute conveys no authority to 
him, since his treaty-making power is conferred by the Consti- 
tution, and is unlimited. Still the provisions are very valuable 
as assuring him the moral support of Congress, without which 
he ought not to make such radical changes in our revenue 
laws. 

Among the exceptional cases in which the President ought 
to obtain the advice of Congress before taking any final steps, 
are those negotiations which may lead to war. War must be 
declared by Congress. It requires large appropriations and 
much legislative action. Before the President takes any step 
which might constitute a casus belli he should ask and obtain 
legislative approval. This was done in April, 1898, by President 
McKinley as a necessary preliminary to his threat of armed 
intervention in Cuba, 

The "recognition of belligerency" and "recognition of inde- 
pendence," which have been so much discussed within the past 
three years, are in their essence judicial acts. They are simply 
decisions, upon evidence duly presented, that belligerency or 
independence exists as a fact. The judiciary, however, for vari- 
ous practical and political reasons, refuse to take evidence and 
decide the question for themselves. It would often be absolutely 
impracticable to take the necessary evidence as to occurrences 
in foreign lands. It would also be most impolitic to exercise 
a jurisdiction which might bring the judges into collision with 
the executive government and bring the United States into 
collision with a foreign power. The judiciary, therefore, have 
always looked to the executive department of the government 



1898] The Cuban Revolt and the Constitution. 13 

for information upon this point; and when the executive 
department finds and announces that belhgerency or independ- 
ence exists, then, and not until then, does the judiciary find the 
same. 

Belligerency can indeed be recognized also by Congress, 
as through its powers to declare war and to define piracies. If 
war were declared against the Cuban insurgents, that would 
recognize their belligerency at once. So, if the insurgents put 
privateers upon the ocean, Congress could legislate that they 
be not treated as pirates. Ordinarily, however, recognition 
must come from the executive; and I believe that never up 
to this time has there been a legislative recognition. 

I have never seen a tenable suggestion of any method by 
v/hich the independence of a foreign country could be con- 
stitutionally recognized by a legislative act. An appropria- 
tion act might provide for the pay of a minister to the new 
state; but it would lie with the President whether to appoint 
him, and the effect of the appropriation would be simply that 
the President, when deciding to recognize, would have ready 
money to open diplomatic relations. It has been suggested 
that recognition could be made under the war power; but 
declaring war against a people recognizes them only as belliger- 
ents. We admitted all through the late Civil War that we 
were at war with the Confederates, but we never recognized 
them as independent. By its very definition a recognition of 
belligerency is a recognition that the belligerents constitute a 
state for all purposes of the war.^ 

Similar reasoning will show that Congress cannot recognize 
the independence of a foreign country under its power to define 
piracies or offences under the law of nations. It has been sug- 
gested that Congress may recognize independence through its 
right to regulate commerce. That would be the case if it had 
the right to recognize commerce by treaty, but it has not. 
Independence of a foreign country is not recognized by any 
statute regulating trade with it. Thus we have long had 
statutes regulating trade with the Dominion of Canada, with 

^ Lawrence, International Law, §162 ; Hall's Inter tiational Law, i.'Ca. Ed., p. 32 ; 
The Estrella, as explained at 166 U. S., pp. 57-8. 



14 Yale Review. [May 

the colonies of New Brunswick, Nova Scotia, Newfoundland 
and Prince Edward Island, and even with the single city of 
Chihuahua in Mexico. Nor can such a right be inferred from 
the fact that its exercise by the President might lead to war. 
If that argument were good, it would follow that the President 
has no right to recognize a new foreign state; but that right 
has been conceded to him, and has been exercised by him 
without question, in a very large number of cases during the 
past hundred years. There are many ways in which acts of 
the executive department might provoke a declaration of war 
from a foreign country. Circumstances are even conceivable 
in which the judiciary, or one of the States of the Union, might 
provoke hostilities. 

The President, however, is expressly given power to recog- 
nize independence of a foreign country in the most usual and 
proper method of performing that act, namely, by receiving an 
ambassador, foreign minister or consul. 

Recognition is sometimes effected by the President and 
Senate in sending a minister, or by the President in sending a 
commissioner, or, in case the new power is simply the suc- 
cessor of one previously recognized, as upon the revolutions in 
France, Brazil and Hawaii, by instructing the resident minister 
to maintain diplomatic relations with the new government. 

The political situation during the last years of the great 
Spanish-American revolution was similar in many respects to 
that which existed during the three years before the breaking 
out of the present war with Spain. Then, as of late, the Presi- 
dent was the conservative force, sympathizing indeed with the 
people of the United States in their strong desire for the suc- 
cess of the revolutionists, but impressed with the responsibility 
imposed by his oath of office, anxious to observe the duties of 
neutrality, and determined not to recognize the independence 
of the Spanish colonies until the moment when the independ- 
ence was an assured fact. Then, as of late, a strong party in 
Congress was determined to force the President's hand if 
possible, and to do everything which could be done by the 
legislative branch of the government to secure it instant 
recognition. The President was James Monroe. The leader 



1898] The Ciiban Revolt and the Constitiition. 15 

of the radicals in Congress was Henry Clay. Many of the men 
who assisted in establishing the Constitution were then still 
living, and every resource of ingenuity was exhausted in invent- 
ing some method of accomplishing the desired end by legisla- 
tive action. The history of these preliminary contests is, there- 
fore, most significant. 

The revolutions commenced in 1810. They met with great 
success, although with occasional reverses. They were not 
confined to the interior of the country, but the insurgents held 
seaports and maintained many privateers and merchant vessels 
upon the seas, sailing under many new flags. The present 
Argentine Republic, — then officially called the United Provinces 
of South America and generally known by the name of its 
metropolis, Buenos Ayres, — was free from Spanish control 
after 18 12, although it did not declare independence until 1816. 
New Granada and Venezuela were held by the patriots for a 
large part of the time after 181 5, and from 1819, when Bolivar 
entered Bogota, the Spaniards held but little ground. Chili 
was reconquered by the patriots early in 181 7, and remained 
pacified, except one minor seaport, after April, 181 8. By his 
annual message of December, 181 7, President Monroe 
announced that the belligerency of the principal insurgent 
governments had been recognized. Mr. Clay was not satisfied, 
and projected a motion to acknowledge the government of 
Buenos Ayres and perhaps Chili. This motion was never 
actually made, and his subsequent course shows that in all 
probability it was dropped on account of the constitutional ina- 
bility of Congress to adopt it. On March 24, 1818, when the 
house was in Committee of the Whole upon the appropriation 
bill, Mr. Clay moved an appropriation for a minister to the 
"independent provinces of the River Plata in South America" 
(meaning the Buenos Ayres government). This would involve 
the assertion by Congress of the right to acknowledge the 
independence of this province; but upon the following morn- 
ing Mr, Clay redrafted his amendment, striking out the word 
"independent," and providing that the appropriations should 
be available "whenever the President shall deem it expedient 
to send a minister to the said United Provinces." In support 



1 6 Yale Review. [May 

of this, Mr. Clay said "that, without unconstitutional inter- 
ference with the executive power, with peculiar fitness we 
might express in an act of appropriation our sentiments, leav- 
ing him to the exercise of a just and responsible discretion." 
Even in this form the resolution was opposed by John Forsyth, 
the Chairman of the Committee on Foreign Affairs, and by 
William Lowndes, one of our greatest parliamentarians and 
then the leader of the house; the latter maintaining that "it is 
the exclusive right of the executive to manage our foreign 
relations," and that "we should present a single front," since 
the President only can communicate, negotiate and treat 
with foreign nations, so that the initiative should be left to him. 
Mr. Clay made two great speeches in support of his resolution, 
but it was defeated by seventy votes. On May 20, 1820, he 
succeeded against the opposition of Mr. Lowndes, and by a 
majority of five, in passing a resolution through the House 
declaring the expediency of the appropriation for such minis- 
ters or minister as we "may send to any of the governments of 
South America which have established and are maintaining 
their independence of Spain." The matter went no further. 
On February 9, 1821, he made a similar motion, which was 
defeated by seven votes. On the following day he introduced 
a resolution declaring the sympathy of the House with the 
South American revolutionists, and "that it will give its con- 
stitutional support to the President of the United States when- 
ever he may deem it expedient to recognize the sovereignty 
and independence of any of the said provinces." This resolu- 
tion he carried after a speech in which he declared that he "con- 
cluded that both Congress and the executive had this power, but 
that the most regular, ordinary and usual course was by the 
executive; and it was, therefore, proper to assure him of the sup- 
port of this House." His reason for supposing that Congress 
had the power is not disclosed. The committee to lay this reso- 
lution before the President was politely received by him with 
the declaration that he would take it "into deliberate considera- 
tion, with the most perfect respect for the distinguished body 
from which it had emanated." Meanwhile President Monroe 
had sent commissioners to South America to inquire into the 



1898] The Cuban Revolt and the Constitution. 17 

real state of affairs there. He had postponed active measures 
until his treaty with Spain for the acquisition of Florida and 
confirmation of our right to Oregon had been assured. The 
struggle of Spain had become hopeless, and at last on March 8, 
1822, nearly twelve years after the commencement of the 
struggle, he sent a message to Congress stating that in his 
opinion the time had come to recognize these republics, and 
asking an appropriation for the salaries and outfits of the 
ministers. The House adopted resolutions stating that it con- 
curred in his opinion and instructing the Committee of Ways 
and Means to prepare an appropriation bill accordingly. 
Recognition was given by his reception of the Columbian 
minister on June 18, of that year. 

In 1836 great excitement had arisen among our people over 
the revolution in Texas, and Mr. Clay, now a member of the 
Senate, again took the lead by introducing a resolution that its 
independence "ought to be acknowledged by the United States 
whenever satisfactory information shall be received that it has 
in successful operation a civil government capable of perform- 
ing the duties and fulfilling the obligations of an independ- 
ent power; and, while conceding that the President under 
the Constitution has the charge of our foreign intercourse 
and ought to take the initiative in an acknowledgment 
of independence of any new power, said that if "the Presi- 
dent should be tardy he may be quickened." The resolu- 
tion was adopted. Daniel Webster said in the debate that 
"against a direct recognition he thought there existed strong 
objections; it was the proper function of the President to 
take the lead in this matter." Mr. Clay maintained that 
Congress might recognize independence by a law regulating 
commercial intercourse; but neither he nor any one else has 
ever found a way of framing such a law so as to have the desired 
effect. The House passed resolutions subsequently to the 
same effect, introduced by Mr. John Y. Mason, the Chairman 
of the Committee on Foreign Relations; but his report made 
no claim that Congress had the right to recognize Texas, say- 
ing, on the contrary: "By the Constitution of the United States 
the duty of conducting negotiations and of superintending 



1 8 Yale Review. [May 

our relations with foreign states is devolved on the President." 
At the following session President Jackson sent a message to 
Congress in which he stated that it was unnecessary to discuss 
the constitutional question, for "on the ground of expediency" 
he thought it better "that the expediency of recognizing the 
independence of Texas should be left to the decision of Con- 
gress." An interesting discussion followed in the House, John 
Quincy Adams opposing any form of words which would imply 
that Congress had the right to give recognition. The opposi- 
tion was successful. An appropriation for a diplomatic agent 
"to the independent republic of Texas" was changed so that 
the agent should be sent "to the Republic of Texas whenever 
the President of the United States shall receive satisfactory 
evidence that Texas is an independent power and that it is 
expedient to appoint such a minister." Under this appropria- 
tion the agent was actually accredited. 

It has been claimed that Congress recognized the independ- 
ence of Hayti and Liberia in 1862, but the act merely author- 
ized the appointment of diplomatic representatives to these 
republics, and fixed their rank and pay. It had substantially 
the same effect as the appropriation for Texas just quoted. 

In 1864, the House of Representatives, against the protest 
of Mr, Blaine, passed a resolution claiming that Congress had 
the right to prescribe our foreign policy and recognize new 
powers, and that the President was obliged to respect that 
policy in diplomatic negotiations. President Lincoln and 
Secretary Seward took the opposite ground, and the Senate 
(which up to very recent years has always maintained the 
prerogative of the executive department, to which in a sense it 
belongs) paid no attention to the matter. 

In 1876 Congress passed a joint resolution requesting the 
Secretary of State to convey a complimentary message from it 
to the Republic of Pretoria (the Transvaal); but President 
Grant vetoed the resolution on the ground that it inadvertently 
infringed upon the constitutional rights of the executive, say- 
ing: "If Congress can direct the correspondence of the Secre- 
tary of State with foreign governments, a case very different 
from that now under consideration might arise, when that 



1898] The Cttban Revolt and the Constitution. 19 

officer might be directed to present to the same foreign govern- 
ment entirely different and antagonistic views or statements." 

As Congress and the President have never actually disagreed 
upon these matters, the question has never been presented to 
the judiciary for decision; but the great weight of authority, 
including that of Story, is in favor of the view which, as I have 
just shown, is sustained by the great weight of parliamentary 
and executive opinion throughout the first century of our 
RepubHc. 

The precedent established by Monroe and Jackson should be 
our guide for the future. As long as the President fails to 
obtain evidence sufficient to warrant him in recognizing a new 
foreign power, or as long as he finds it unwise to do so, 
Congress should remain quiescent; for it has no power or 
responsibility in the matter, while agitation can only have the 
effect of straining our foreign relations and injuring the pride 
of the nation which is endeavoring to suppress the revolt, thus 
lessening the probability that our sympathy may ultimately be 
given effect by peaceful means. The President on the other 
hand, when he thinks that the time has come, or may have 
come, for recognition of independence, but when there is risk 
of war, may and should submit the case to Congress, and take 
no step in that direction without legislative approval — not 
because the Constitution makes legislative approval requisite, 
but because good sense and good politics require it. 

The wisdom of the Constitution, in entrusting such great 
authority to the President instead of to Congress, I do not 
intend here to discuss at length. Certainly experience shows 
that it makes for peace; and it is argued by many that delicate 
foreign relations, where a few hasty or ill-chosen words may 
make the difference between peace and war, can not safely be 
put in the hands of a body so much under the influence of ora- 
tory and of journalism, so apt to be led by persons unskilled in 
foreign history and character and in international law, whose 
action can be delayed by a small minority in one house and 
controlled by a bare majority in either. There are certain 
special reasons, however, which have always been regarded as 
conclusive in favor of confining diplomacy to the President and 



20 



Yale Review. [May 



his confidential advisers, no matter how wise the legislative 
bodies may be. 

One of these reasons is the secrecy of much of the informa- 
tion on which the negotiations must be based. That the Presi- 
dent cannot safely divulge it all has been conceded from the 
earliest times in the formula by which Congress calls on him 
for the information, excepting from the call so much as may be 
incompatible with the public interest to repeat. When the 
Constitution was framed, the President had mainly to rely upon 
secret reports of Government agents for his knowledge of 
foreign affairs, which the news bureaus were not well organized 
to convey. It is less so now; but even in this Cuban insurrec- 
tion it has been impossible to learn through the press the real 
state of facts, while the recent consular reports have been of 
such a character that it was deemed wise not to divulge them 
until their authors had got away safe from the island. 

Still more important is the secrecy with which diplomatic 
negotiations must be carried on, in order that they may be 
successful. Above all, the extent of the concessions which the 
Government would make as a dernier resort must be concealed 
from the foreign state. This will be perceived by any one who 
has conducted a business transaction, or compromised a law- 
suit. If on one side there is an individual who keeps his own 
counsel, while on the other side is a large assemblage who must 
debate the intent and method of every step in the negotiations, 
binding the negotiator by restrictions a copy of which (with a 
report of the debates) is at once laid upon the adversary's desk, 
it is easy to see where the advantage lies. On this ground 
President Washington placed himself when refusing to submit 
to the House of Representatives his instructions to Jay, saying: 
"The nature of foreign negotiations requires caution, and their 
success must often depend upon secrecy; and even when 
brought to a conclusion a full disclosure of all the measures, 
demands, or eventful concession which may have been pro- 
posed or contemplated, would be extremely impolitic; for this 
might have a pernicious influence on future negotiations or pro- 
duce immediate inconveniences, perhaps danger and mischief, 
in relation to other powers." 



1898] The Cttbait Revolt and the Constitution. 21 

It may be vital that the wording of the later diplomatic 
communications, and especially of the ultimatum, be selected 
with extreme care, in order that the civilized world may see that 
we are entirely in the right, and our enemy entirely in the 
wrong. The sympathy of neutral nations is no mere luxury 
in time of war. The event of the conflict may be determined 
by their regulations of neutrality, as for instance, in the extent 
to which they will permit belligerent cruisers to be supplied 
with coal in their own ports. Moreover, as we have just 
proved, it is possible for a third party to intervene in a war; 
and its sympathies as much as its real interests may determine 
the issue of intervention or non-intervention. Few will deny 
that a President and Secretary of State will draw more skillful 
state papers than are ever likely to emerge from a Congres- 
sional debate. 

Finally, when war is threatening, it is of importance that 
negotiations should be so conducted as to postpone the out- 
break of hostilities until the moment when we are prepared to 
open them to the best advantage. Preparations must be made 
for the mobilizing of armies: cruisers, cannon, ammunition, 
torpedoes, must be bought. Vessels in dry dock must be 
repaired. Vessels abroad must be recalled. If they are 
unarmed, time must be allowed to arm them there before the 
neutral is disqualified by the outbreak of war to render further 
assistance. Unpreparedness in these respects must not be 
known to the foreign nations. The President must not say to 
Congress — that is, to the press of the world, — "I am apparently 
vacillating and aimlessly procrastinating because part of the 
navy needs scraping and the rest happens to be in such and 
such a position with respect to the other party's torpedo boat 
destroyers." If the nation wants its wars to be quick, decisive 
and successful. Congress must quietly await the President's 
own time for action, and then give him its prompt support. 
Its action should be a simple yes or no, like the Senate's action 
on a nomination for office. 

The joint resolutions of April 20, 1898, which precipitated 
the present war with Spain, will be of slight weight as a con- 
stitutional precedent, because of the manner of their adoption; 



2 2 Yale Review. [May 

for they were a compromise, satisfactory in form to few of those 
who passed them. It is of some significance that legislative 
recognition of the insurgent government in Cuba was defeated, 
and mainly on the ground that it would be an attempt to exer- 
cise a function belonging to the executive. 

The declaration that "the people" of Cuba are independent 
is difficult to construe.^ It is not intended as a recognition of 
independence of a new foreign state, as understood by inter- 
national law; for that proposition was rejected. But it is not 
permissible to put down anything in an act of Congress as mere 
rhodomontade, if such a result can be avoided. By familiar 
legal rules of construction we must find some meaning for the 
declaration if possible, and a meaning which will make it con- 
stitutional and valid. Such a meaning can be found if we treat 
the next two resolutions^ as passed with the knowledge that 
they would make immediate war v^^ith Spain unavoidable — an 
effect both intended and produced. By that war our citizens 
have become enemies of all Spanish subjects, so that all con- 
tracts between them have become void and all commercial 
intercourse illegal. Such a result, as far as the Cubans are 
concerned, Congress might well seek to avoid. The first resolu- 
tion will perhaps be construed by the courts as introducing an 
exception in favor of persons residing in the island of Cuba, so 
that intercourse with them shall remain legal, so far as not 
interrupted by actual hostilities or by Spanish occupation of 
their territory. 

■^ " Be it resolved, 

"First — That the people of the island of Cuba are, and oi right ought to be, 
free and independent." The italicized words were stricken out by the House of 
Representatives, but restored by the Conference Committee. 

2 " Second — That it is the duty of the United States to demand, and the Gov- 
ernment of the United States does hereby demand, that the Government of 
Spain at once relinquish its authority and government in the island of Cuba, 
and withdraw its land and naval forces from Cuba and Cuban waters. 

" Third — That the President of the United States be and he hereby is directed 
and empowered to use the entire land and naval forces of the United States, and 
to call into the actual service of the United States the militia of the several 
States to such an extent as may be necessary to carry these resolutions into 
effect." 



1898] The Ctibaii Revolt and the Constitution, 23 

The second resolution is undoubtedly unconstitutional, for 
Congress can not communicate with a foreign nation, nor can 
it direct the President how to perform his duties. It was 
entitled to most grave consideration from him, because it 
expressed the opinion and the wish of both Houses of Con- 
gress; but it would have had no legal effect, and no binding 
force upon him, if he had vetoed it and it had been passed over 
his veto. His signature added nothing to its legal weight; but 
his communication to Spain, in which he adopted its words, 
was valid as his executive act. For the war thus precipitated 
the President, therefore, is the person constitutionally respon- 
sible, just as a general is responsible for strategy which he has 
directed, even if he has, as against his own opinion, followed 
the advice of his staff. Whether the opinion and the wish of 
Congress, and the act of the President, were wise or unwise, 
timely or untimely, necessary or quixotic, must be left for his- 
tory to decide. No patriotic American can express now but 
one sentiment. 

Edward B. Whitney. 

New York. 



LIBRARY OF CONGRE: 



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